Beyond Justice, Beyond Peace? Colombia, the Interests of Justice, and the Limits of International Criminal Law

Abstract

This paper explores the role of Article 53 of the Rome Statute and its ‘interest of justice’ standard in Colombia. After first providing some background to the ICC’s involvement in Colombia in the context of the so-called Justice and Peace Law and the more recent Legal Framework for Peace, we critically explore the reasons why the principle of complementarity is the focus of contemporary debates on the ICC in that country. We suggest that this discussion often ends in stalemate, with little space to move forward. In light of this, in this article we propose an alternative way to advance the discussion; namely, Article 53. We then consider whether, in order to protect transitional justice mechanisms adopted by states in order to end conflicts and move towards national reconciliation, the OTP has the power under Article 53(1)(c) to stop a prosecution on the basis that it is not in the interests of justice. Much here depends upon whether justice is interpreted broadly or narrowly. Two questions are central: First, should transitional justice arrangements be permissible under the legal framework established by the Rome Statute? Second, should the OTP concern itself with matters pertaining to domestic politics or should it understand its role as being completely independent from national processes? We advocate a narrow reading of the concept of justice, meaning that the OTP cannot use Article 53(1)(c) to prevent ICC intervention on the basis that it risks disrupting a transitional justice mechanism.